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John B.
Republican WY

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  • Recess Appointments

    by Senator John Barrasso

    Posted on 2013-01-30

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    BARRASSO. Madam President, I agree completely with my colleague, who has really shown significant leadership in this area, worked closely on it. He has been a Governor for two terms, knows about appointments, knows about advice and consent.

    What we have seen from this President of the United States, just last January, is a flagrant disregard for the Constitution and the laws of this land by bypassing the Senate and appointing three members to the National Labor Relations Board, claiming--claiming--the Senate was in recess, even though the Senate was meeting regularly in pro forma sessions. So last week the U.S. Court of Appeals for the District of Columbia ruled unanimously--unanimously--that those unilateral appointments were unconstitutional.

    It is interesting because I saw the whip of the Senate Democrats on one of the television shows this weekend, and he said: Well, we need to make sure people have plenty of time for hearings. They did not have hearings.

    Madam President, the Democrats are in control of the Senate. They could have called hearings but chose not to. The President let these vacancies sit for long periods of time, and only in the middle of December of 2011 did he even put names up and then summarily, just a few weeks later, went and unilaterally appointed them. The Senate was really never consulted. The Senate did not have an opportunity to advise and consent. That is why I use the word ``flagrant'' in terms of the President's bypassing of the Senate in making these alleged recess appointments.

    Well, over the weekend, newspapers across this country reported on this consequential ruling by the court and what it will mean for the administration going forward.

    The Wall Street Journal called it ``Obama's Abuse of Power''--abuse-- abuse of power.

    Politico said: ``President Obama's Recess Appointment Bet Sours.'' Investor's Business Daily reported: ``Court Finally Reins in Obama's Imperial Presidency.'' The Washington Post explained: ``Court Says Obama Exceeded Authority in Making Appointments.'' The Los Angeles Times reported: ``Court Rules Obama's Recess [Appointments] Are Illegal''--illegal.

    After we go on reading through all of this, after this court ruling, the White House should finally realize--finally realize--that the President's power to use recess appointments is not unlimited.

    The court's decision reaffirms that America's Founding Fathers provided the Senate--the Senate--a responsibility, a duty to advise and consent, and they did it with the strong, coequal responsibility on important nominations.

    Well, let's take a look at what the U.S. Court of Appeals for the District of Columbia actually ruled when they talked about the President's so-called recess appointments.

    The court said: An interpretation of ``the Recess'' that permits the President to decide when the Senate is in recess would demolish-- ``Demolish,'' the court said-- the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.

    The court went on to say: ``This cannot be the law.'' I agree completely with the court, which is why I am here on the floor of the Senate with my colleagues. Senator Johanns, also a former Governor, is with us today. These are individuals who understand the importance of advice and consent. And again, as to Senator Johanns, he has been a Cabinet member. He has been subjected to the process of advice and consent, and he knows how important that is in the balance of power, in how Washington and our Nation are supposed to work by the Constitution.

    As the court wrote, ``Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers.'' The court added, ``It would make little sense to extend [the recess appointment authority] to any intrasession break'' because the ability to make recess appointments would swallow the advice-and-consent role of the Senate.

    Because of the President's illegitimate appointments, the NLRB is now operating under a cloud of uncertainty all across the country in all of their regulations and rules. That is why shortly after the appointments, the President's appointees to the NLRB--Sharon Block, Terence Flynn, and Richard Griffin--began issuing orders and opinions in labor disputes. So they have been doing that now for over a year.

    All of those decisions that the Board issued by a quorum made up by those members--there were over 200 of those rulings coming out in the past year--are subject to challenge and to invalidation. We have heard from Senator Alexander on one of those having to do with micro unions. Another had to do with collection of union dues even after the contracts had expired. On and on and on, numbers of rulings, over 200 have been made. They are all subject to challenge and invalidation because there was no legitimate quorum for the National Labor Relations Board. At this moment it is practically impossible for anyone to know which NLRB decisions are valid and which are not. It is my opinion that none of them should be valid. But it is time to stop this regulatory train wreck from getting any worse. That is why this week I am introducing a bill that will freeze any decisions, any regulations, any rulings made by this unconstitutionally appointed and invalid quorum of the National Labor Relations Board. Until we have final resolution from the courts, the NLRB should not be able to move forward and create even more uncertainty across this country.

    We would not be in this position if the President of the United States had done what legally he is mandated to [[Page S383]] do, which is work with Congress and follow the Constitution. I hope that court ruling serves as a wakeup call for President Obama and for his entire administration. Instead of going around Congress, instead of going around the Constitution, it is time for the Obama administration to work with us on nominations.

    I see the Senator from Nebraska is here, the former Governor, former Cabinet member. I look forward to hearing his comments as well.

    I yield the floor.

    The ACTING PRESIDENT pro tempore. The Senator from Nebraska.

    Mr. JOHANNS. Madam President, I rise today, first of all, to say thank you to Senator Barrasso and Senator Alexander for speaking so forcefully on this issue. All of us in this body are elected officials and we take an oath. In that oath, we raise our right hand and we promise our Nation that we will uphold the Constitution of the United States, this very sacred document that has so soundly guided our great country from one decade to another, one century to another, one generation to another.

    In fact, many of my colleagues in Congress took that oath earlier this month. Just 10 days ago, President Obama took the Presidential oath of office with great pomp and circumstance. We were all on the platform with him. He promised the Nation that he would preserve and defend the Constitution of the United States. But I fear that now what we are seeing is a flaunting of that very document.

    You see, the DC Court of Appeals ruled that the President violated the Constitution with his appointment of three members to the National Labor Relations Board. I read the opinion. I saw no other solution than to ask these individuals to leave. The truth of the matter is they are not constitutionally there and need to leave.

    This request was not about a personal preference or an attitude about any one individual. It was not about their qualifications. It was about the oath of office we take. And that oath of office says we will uphold the Constitution. The NLRB appointments were unconstitutional because the President only has the power to bypass our advice-and-consent role here in the Senate under the language of the Constitution. The court unequivocally found that the appointments were made last January while the Senate was not in recess, and were therefore void. Therefore, the President could not use the recess appointments clause of the Constitution to appoint these individuals. The ruling correctly concludes: ``Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers.'' The separation of powers is a critical safeguard to ensure that one branch of government does not overstep the other. The court goes on to say that allowing these nominations to stand ``would wholly defeat the purpose of the Framers in the careful separation of powers.'' Additionally, because these appointments were unconstitutional, the board lacked the quorum necessary to make decisions over the past year. This calls into question over 200 rulings of the board since last January. I personally believe that there is no doubt, if they are not constitutionally there, if they are there violating the Constitution, then all of their rulings, all of their regulations, all of their actions as a board are invalid and void.

    That is why I wrote last Friday to the Government Accountability Office asking them to report to us every single decision they had made that was in excess of their powers to be there. You would think it would be common sense that the board would suspend all further action. You know, as a former member of the Cabinet, it never occurred to me that I had the right to ignore court decisions. I cannot imagine. The Chairman of the NLRB said this, ``The board respectfully disagrees with the decision.'' The Chairman indicates they will continue to conduct business as usual, even though a unanimous appeals court has deemed the appointments of all but one member of the board to be unconstitutional. I find their action absolutely appalling. Decisions by the NLRB are felt across the country.

    It is not fair for the Board to say to the court: Go pound sand, which is exactly what they are telling this court. It is already awful that 200 litigants now have to go through the time and expense to appeal their rulings. Instead of continuing business as usual and issuing more bogus rulings, the Board should recognize that it is time to leave and to honor the Constitution.

    I will wrap up with this. The D.C. appeals court ruling was a victory for our system of government. I believe it was a victory for the Constitution. It ensures that no one, including the President of the United States, is above the Constitution. I simply ask the NLRB, its members who were unconstitutionally appointed, to recognize the sanctity of our Constitution and vacate their offices immediately. Leave. Let us in the Senate have the powers granted to us by the U.S. Constitution to offer advice and consent to the President of the United States.

    I yield the floor.

    The ACTING PRESIDENT pro tempore. The Senator from New York.

    (The remarks of Mrs. Gillibrand pertaining to the introduction of S. 179 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'') ____________________

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